-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-
law_gl@majordomo.lls.edu] On Behalf Of Lowenstein, Daniel
Sent: Friday, December 16, 2005 11:02 AM
To: election-law@majordomo.lls.edu
Subject: FW: question regarding partisan gerrymandering claim in Texas
redistricting cases
Of course it is true that members of the House typically have
influence and sometimes have predominant influence over the congressional
districting plans adopted by the legislatures of their states. But that
does not distinguish congressional districting from a huge number of other
policy areas in which a particular group has influence and sometimes
predominant influence over legislation. The argument has been made,
typically in policy debates but sometimes in legal debates, that
redistricting is unique because of the special "conflict of interest"
created by incumbents drawing their own districts. My point is that there
is no such unique situation in congressional districting and that it is
often exaggerated in the case of state legislative districting, especially
in states with term limits, and most especially in California, with its
very tight term limits.
I'm leaving town today and don't have time to continue my end of
this debate. (General sigh of relief goes around the listserv!) In
particular, I don't have time for a full answer to Marty's latest posting,
which I think raises some very deep issues. I will say simply that I
don't agree, first, that any government action is constitutionally
required to have some rational basis. In the absence of an invidious
classification, deprivation of life, liberty or property, or some other
imposition noticed in the Constitution, it is a matter for the people of
the jurisdiction and their representatives. That is true even when--as
would usually be the case--some benefit relative to others. I also
disagree with Marty--as do Rick Hasen and Bob Bauer, if I understand them
correctly--that partisan motivation is generally an improper motivation in
government. Sometimes it is improper (criminal law enforcement in
individual cases, for example) and sometimes it is proper (appoi!
ntment of Cabinet members, for example). It is obviously a debatable
question whether it is a proper motive in redistricting. I believe it is,
Marty believes it is not. The more general view among "elites"--members
of the Supreme Court, for example, and probably the majority of
subscribers to this listserv--seems to be that it is proper up to some
point and not beyond that point. Everyone agrees that the "point" is hard
to discern, and that is where the water starts flying off in all different
directions.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of David J. Becker
Sent: Fri 12/16/2005 5:22 AM
To: election-law@majordomo.lls.edu
Subject: RE: question regarding partisan gerrymandering claim in Texas
redistricting cases
Just one quick response to Prof. Lowenstein's point that the "conflict of
interest" argument, as he puts it, "has no application to congressional
redistricting, as members of Congress do not vote on redistricting plans."
I would hope that the TX re-redistricting, which is what started this
whole
discussion, amply demonstrates that members of Congress absolutely have a
tremendous influence on how their plans are drawn. Having reviewed many
redistricting plans, and spoken with legislators about it, I would venture
to say that the individuals with the MOST power over congressional
redistricting are the members of Congress of the majority party in the
state. Tom Delay's muscling through the TX plan supports this, as well as
testimony I've heard from legislators and Congressmen in Georgia. There's
no question that Gingrey and the other GOP congressmen were the major
players in the recent Georgia re-redistricting.
David J. Becker
Election Consultant and Voting Rights Attorney
(202) 550-3470
(202) 521-4040 fax
david.j.becker@electionconsulting.com
www.electionconsulting.com
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Lowenstein,
Daniel
Sent: Thursday, December 15, 2005 10:12 PM
To: election-law@majordomo.lls.edu
Subject: FW: question regarding partisan gerrymandering claim in Texas
redistricting cases
I take it that Michael Michael McDonald and and David Becker are
pointing to two ways in which incumbent legislators allegedly block
change,
creating a situation they regard as analogous to malapportionment (though
Mr. Becker, at least, and probably both concede that the problem with
gerrymandering is considerably smaller in degree).
The first point is that when reform proposals are on the ballot,
the incumbents raise money to defeat the measures. I pointed out this
morning that this claim has little factual basis, at least in California.
In addition, how can it be analogous to the malapportionment problem that
opponents of change are able to persuade a majority of voters to support
the
existing system? I take it, that was Rick's idea.
The second point is the incumbents will block reform in
legislatures
because of their own self-interest. This "conflict of interest" argument,
which was true in the case of malapportionment and was ubiquitous in the
press in California during the 77 campaign, is greatly overblown. It
has
no application to congressional redistricting, as members of Congress do
not
vote on redistricting plans. It has very limited application in a state
with term limits, especially term limits as tight as those in California.
For example, the legislators with by far the greatest influence on the
California legislative plans currently in effect were the Democratic and
Republican leaders in Senate and Assembly. Of those four, only one could
run for reelection under the districtst that were created.
This point is developed much more fully in the No on 77 White
Paper,
for which you can find a link in the September 2005 archives on Rick's
electionlaw blog.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of David J. Becker
Sent: Thu 12/15/2005 3:12 PM
To: 'Rick Hasen'
Cc: 'election-law'
Subject: RE: question regarding partisan gerrymandering claim in Texas
redistricting cases
Granted, it's not as bad as Baker v. Carr, but it's still a structural
block
to preventing overly partisan gerrymandering. Incumbents have every
incentive to keep the status quo (or enhance their power), and have all
the
power to raise money, which I believe creates a substantial structural
block
(though clearly not as substantial as in Tennessee). Whether this block
is
substantial enough to invoke this Court's intervention, I can't say, but
as
a litigator, I'd definitely argue the hell out of that point. As for the
result that I would like, I presume you mean the reduction in overly
partisan gerrymandering (however anyone wants to define that), and it
seems
to be the one thing we all agree on - including Justice Kennedy, and even
some of those in the Vieth plurality.
David J. Becker
Election Consultant and Voting Rights Attorney
(202) 550-3470
(202) 521-4040 fax
david.j.becker@electionconsulting.com
<mailto:david.j.becker@electionconsulting.com>
www.electionconsulting.com
________________________________
From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Thursday, December 15, 2005 6:07 PM
To: David J. Becker
Cc: 'election-law'
Subject: Re: question regarding partisan gerrymandering claim in Texas
redistricting cases
Just a narrow point----if parties throw money to block redistricting and
hash things out in the political process, thereby convincing voters that
voting for a particular districting reform is a bad idea, that doesn't
strike me as a *blockage* in the political process as we saw in Tennessee
in
Baker v. Carr. That strikes me as the political process *working,* albeit
reaching a result that you migth not substantively like.
David J. Becker wrote:
Michael McDonald's post is far more thoughtful than anything I could post,
so I'll try to keep this last point brief.
I personally agree that Shaw was decided incorrectly (and my arguments
here
would be very different if Shaw weren't the law), but even though Kennedy
said that politics does not equal race in the Shaw context in Vieth, he
also
said that it could be possible for partisan classifications to be applied
in
an invidious manner unrelated to legitimate legislative objectives. If he
were convinced, through the facts, that TX was such an invidious case, I
think he might find the Shaw/Miller test (predominating over traditional
districting principles) to be a useful standard for such a claim. Perhaps
they might even limit this to mid-decade voluntary re-redistrictings as a
precondition, which might reconcile our two views on this, Rick.
As for your final point on the legislative process addressing this, you're
forgetting a third possibility, which I believe is the real reason we
don't
get redistricting reform in general - the established political parties
put
so much money and energy into defeating these measures, they don't have a
chance. In CA, for instance, both Dems and Reps (congresspeople and their
allies) contributed a ton of money to defeat Prop. 77 (as poorly designed
as
it was). It's unclear whether it would have passed even if it didn't call
for mid-decade redistricting, given the heavy hitters who lined up against
it. I just don't think the legislative or the initiative process is
well-suited to bring the kind of change that's needed (though you're right
to identify the initiative process, where it's available, as being more
likely to bring change than the legislative process).
David J. Becker
Election Consultant and Voting Rights Attorney
(202) 550-3470
(202) 521-4040 fax
david.j.becker@electionconsulting.com
<mailto:david.j.becker@electionconsulting.com>
www.electionconsulting.com
________________________________
From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Thursday, December 15, 2005 3:16 PM
To: David J. Becker
Cc: 'election-law'
Subject: Re: question regarding partisan gerrymandering claim in Texas
redistricting cases
I agree that Shaw could be good authority for your argument, but I think
Shaw was incorrectly decided for similar reasons to the reasons I have put
up before. And we have five Justices from Vieth who rejected the analogy
to
Shaw.
Perhaps I continue to misinterpret your point, but this still looks like
an
argument of bad intent (disregard of traditional voting criteria in favor
of
partisan advantage) + gross disproportionality on party grounds =
unconstitutional gerrymander. What else would there be to your test?
As for the Elyian stuck political process argument: this is why I have
trouble with the original Lucas case, where OPOV was approved by voter
initiative. If this is indeed a case where there is widespread public
support to stop these partisan gerrymanders, but the political process is
stuck, I would expect to see some jurisdictions with the initiative
process
successfully put limits on such partisan gerrymanders. The fact that it
has
not happened yet is some evidence that there's no consensus on (1) how
much
partisanship is too much or on (2) better ways to draw legislative
districts.
Rick
David J. Becker wrote:
Rick, you might be again misinterpreting what I am saying. I am NOT
saying
disproportionality "always creates an impermissible partisan gerrymander",
nor am I saying that there is any claim, in and of itself, for
proportionality. I'm saying that disproportionality is and should be very
powerful EVIDENCE (not a claim in and of itself) in determining whether a
partisan gerrymander goes too far as a matter of constitutional law. I
think terms like "bad intent" and "bad effect" might be a bit too
simplistic
here. If Shaw can look at the totality of factors (intent, effects,
process, etc.) to determine whether race predominated too much over
traditional districting principles as a matter of constitutional law
(don't
think that over-representation of minorities in a plan wouldn't be a VERY
relevant factor when a court is looking at a Shaw claim), then I don't see
why, as a matter of constitutional law, the same kind of test can't be
applied to overly partisan mid-decade gerrym!
anders.
I agree that it would be nice if Congress used its power to make laws to
enforce more proportionality on a national basis, thus making these
lawsuits
unnecessary (regardless of whether they have merit or not), but I'd be
interested to see if there is anyone, anywhere on this list, who thinks
such
a law is likely to even be debated in this or any other Congress, let
alone
be passed and signed into law. Every party has an interest in maintaining
and expanding its power, once it gets power, so the legislative process is
inherently ill-equipped to deal with this issue. We're seeing this effect
play itself out perfectly in state legislatures and Congress right now.
That's exactly why the Supreme Court ultimately ruled the way it did in
the
OPOV cases - because Congress was never going to legislate such a standard
(though I, perhaps unlike Judge Alito, do believe the Constitution
encompasses such a standard).
Credit to Rick for raising these interesting questions, because I find
this
debate fascinating and worthwhile. I hope I haven't diverted the
discussion
away from Rick's original question.
David J. Becker
Election Consultant and Voting Rights Attorney
(202) 550-3470
(202) 521-4040 fax
david.j.becker@electionconsulting.com
<mailto:david.j.becker@electionconsulting.com>
www.electionconsulting.com
________________________________
From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Thursday, December 15, 2005 2:52 PM
To: David J. Becker
Cc: 'election-law'
Subject: Re: question regarding partisan gerrymandering claim in Texas
redistricting cases
On your second point David----I agree that the scenario you give would be
great evidence for a SECTION 2 violation. That is key to your argument, I
think, but it is a point you gloss over. The appropriate standard for
enforcing a statute is different from what is appropriate *as a matter of
constitutional law.*
As I have argued elsewhere, City of Mobile v. Bolden was correctly decided
because the Court should not have enshrined in the Constitution a
requirement of proportional representation of racial minorities in voting.
Congress also acted appropriately in response to City of Mobile v. Bolden.
It enacted section 2 of the Voting Rights Act, where Congress installed a
proportional-like remedy for the problem of racial vote dilution. The
Court
was right to enforce section 2, and it should not strike it down as
exceeding Congressional power.
The history of section 2 hows us that we can have political solutions to
deal with a contested vision of political equality. If the Supreme Court
holds, as you suggest, that large disproportionality in party affiliation
and bad intent always creates an impermissible partisan gerrymander, it
creates a one size fits all limit on how courts can engage in
redistricting---and it is a limit that cannot be changed except by
constitutional amendment. Alternatively, if the Court denies the claim,
Congress can use its power to enforce more proportionality on the basis of
party on a national basis (at least for congressional redistricting), and
states can make changes as well, especially those states that have an
initiative process. And these laws could be changed without
constitutional
amendment.
David J. Becker wrote:
We'll have to agree to disagree on the OPOV issue. I understand your
reluctance, and by no means do I think it's a slam-dunk, but I don't think
that it matters whether the "bad' intent is partisan, or has some other
rationale. I think when a plan drawer voluntarily draws new districts,
for
any reason, that he knows do not comply with OPOV, the reasons behind his
drawing an unconstitutional plan are only somewhat probative - I think the
intentional drawing of an unconstitutional plan at the time the plan is
drawn can readily, though arguably, be ruled a constitutional violation
per
se. Remember, in these types of cases, unlike most voting rights cases, a
new plan wouldn't need to be adopted by the court - the remedy would
simply
be to revert to the legal plan that was properly drawn at the time.
As for your second point, Rick, you're misreading my point to mean that
I'm
suggesting a requirement of partisan proportionality for all plans. I'm
certainly not, and you're correct that such a proportionality argument, if
anyone were to make it, has several problems. However, evidence of a
large
DISPROPORTIONALITY can be evidence of improper purpose and effect in
voting
rights cases. For instance, just because a state is 40% black, doesn't
mean
that blacks would be entitled to 40% of the congressional seats. However,
if blacks only held 24% of the seats (and it is possible to draw more),
that
would be tremendous, if not virtually dispositive, evidence of a Sec. 2
violation. That would NOT mean that the remedial plan has to give 40% of
the seats to blacks - just that a plan has to be drawn that is less
disproportionate, while also respecting traditional districting
principles.
Also, I don't want to suggest that disproportionality alone should be
sufficient to establish!
a partisan gerrymandering claim. However, when, as in TX, that
disproportionality is accompanied by substantial evidence indicating other
problems (as indicated before, when the districting occurred, what the
stated reasons for the districting were, and the freezing out of racial
and
political minorities from the process), I believe it's not very difficult
to
find a constitutional violation.
And as for the facts indicating such disproportionality, I'll again state
that it's important to give the most evidence to endogenous elections, and
not statewide elections. Thus, the differences in PA between the Gore and
Santorum races would not be very probative at all. It would be far more
important to look at the voting done in congressional races.
David J. Becker
Election Consultant and Voting Rights Attorney
(202) 550-3470
(202) 521-4040 fax
david.j.becker@electionconsulting.com
<mailto:david.j.becker@electionconsulting.com>
www.electionconsulting.com
________________________________
From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Thursday, December 15, 2005 2:07 PM
To: David J. Becker
Cc: 'election-law'
Subject: Re: question regarding partisan gerrymandering claim in Texas
redistricting cases
As to the first point, I don't find the intent argument persuasive,
because
I think most of the time legislatures dominated by one party will have a
"bad" partisan intent. Are we to strike down all plans on this basis?
Especially plans that may contain no more of a violation of OPOV than the
plan that it overturned (by the end of the decade due to population
shifts).
As to your main point on the disparities, your point about the evidence is
well taken, but I have a problem even accepting your numbers as a given.
Suppose the state has 53% Rs and R's control 69% of the seats after a
redistricting motivated (in sole or predominant part) by a "bad" intent.
To
hold this as a partisan gerrymander based on effect would require some
kind
of rough proportionality of statewide voter preferences (transient though
they may be---and inconsistent as though they may be: remember in Vieth
that
a majority of Pa voters in 2000 preferred both Al Gore for President and
Rick Santorum for Senate) translated into legislative seats. I don't
think
courts, in the name of the equal protection clause, should enforce such a
"one size fits all" solution on the states. If the Constitution is read
to
require proportionality of party, why not proportionality of race too? Cf.
Mobile v. Bolden. What kind of interest group could not then bring a
proportionality claim?
Rick
David J. Becker wrote:
First of all, I wouldn't be too sure that the one-person, one-vote
argument
isn't that strong. I think Jeff Hauser answered Fred's points quite well.
In particular, I believe the voluntary creation of new districts, that
would
otherwise (for constitutional or other legal reasons) be unnecessary to
draw, using apportionment data that is undeniably out-of-date and
inaccurate, creates a real one-person, one-vote problem. I believe the
intent of the plan drawers is very important - a plan drawn right after
the
decennial census is the best the plan drawers could do to comply with
one-person, one-vote at the time - a plan drawn anytime thereafter is NOT
the best that can be done, and is knowingly violative of one-person,
one-vote, when drawn.
Second, with regard to Rick's question, I think the facts are very much at
issue. For instance, the court states that "Republicans garner[ed] 59% of
the vote in statewide elections" in the 2000 election. It's unclear which
specific elections the court is talking about (at least in the opinion),
and
whether the deviation between elections is great or small (which would
clearly impact its evidentiary value - if the GOP gets 59% in all
statewides
averaged, but in one key race they got 80%, and another 38%, the
evidentiary
value of this statistic is zero). Secondly, as we demonstrated
conclusively
in GA v. Ashcroft, voting varies greatly between races for president,
senator, statewide offices, congress, and local offices. In Georgia, for
instance, a Republican is much more likely to get elected the higher up on
the ballot he/she is - Democrats have a far greater likelihood of beating
Republicans in local, county, and congressional elections than in
statewide
contests. Thus,!
I think this 59% number is virtually meaningless.
As I pointed out in a separate post, by my calculations (totaling the
number
of votes from the TX SOS website), GOP candidates got 53% of the vote in
the
2002 elections (which proves my point about elections at different levels
yielding different results, with Bush garnering 59% and 61% of the vote in
the 2000 and 2004 elections, respectively). However, the re-redistricting
granted them 65% of the seats (and one could argue, it was designed to
give
them 1 additional seat, or 69% of the seats).
Without question, Rick is right to question whether a difference of 6%
(65%
to 59%) is enough to indicate too much partisanship. I can't answer that
-
I think it's a very close question, where other factors (such as when the
redistricting took place, the stated reasons for the redistricting, and
the
degree to which racial and political minorities were shut out of the
process) would play a particularly strong role (and in TX's case, all the
factors weigh against the re-redistricting). However, if one views the
facts as showing a difference of 16% (69% to 53%) in partisanship, that
might very well create such a strong case that the other factors don't
need
to be as strong. Such a difference should probably create a strong
presumption that partisanship predominated over all other traditional
districting principles.
Clearly, how the facts in the record are viewed by the Court will be key.
However this comes out, it's important to compare apples to apples, and
concentrate on the endogenous elections when determining the degree of
partisanship in elections and the overall plan.
David J. Becker
Election Consultant and Voting Rights Attorney
(202) 550-3470
(202) 521-4040 fax
david.j.becker@electionconsulting.com
<mailto:david.j.becker@electionconsulting.com>
www.electionconsulting.com
________________________________
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Rick Hasen
Sent: Thursday, December 15, 2005 12:27 PM
To: election-law
Subject: question regarding partisan gerrymandering claim in Texas
redistricting cases
I am interested in hearing from others about the possibility of crafting a
"judicially manageable" test for partisan gerrymandering in the Texas
redistricting cases. Put aside the Voting Rights Act issues (which could
well have merit) and put aside the Shaw claim (which strikes me as weak).
Also, put aside the one person, one vote mid-decade redistricting
argument,
which for reasons Fred Woocher put forward the other day on the list,
strike
me as not that strong. Finally, put aside the (very real) possibility that
the Court crafts a rule applicable just to *mid-decade* redistricting for
partisan advantage.
With all that put aside, my question is this: what is the argument that
the
Texas plan itself constitutes a partisan gerrymander? Looking at the
facts
on pages 12-15 (pdf pages) of the three-judge court opinion
(http://news.findlaw.com/hdocs/docs/txgate/hndrperry60905opn.pdf), how can
it be said that a plan that gives Republicans an advantage in a state that
was tending to vote 58% R to 41% D constitutes a partisan gerrymander? As
I
recall the test for partisan gerrymandering plaintiffs put forward in
Vieth
(a majority of voters on a statewide basis consistently is outvoted on a
district-by-district basis), the Texas plan would NOT constitute a
partisan
gerrymander. Is there now some other test that should be applied, which
would show that there is too great a partisan effect? Or is this only to
be
an intent test? Let's assume the Texas legislature' sole purpose in
redistricting was to secure partisan advantage. Is that to be the test?
I
find such intent tests very tr!
oubling for a number of reasons I could get into if this is the argument
made against the Texas redistricting.
Thanks.
Rick
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org